New favorite blog. I'm so glad I found it. There's actually a blog about splits among the circuit couts. Appropriately named Split Circuits, the blog is written by Professor A. Benjamin Spencer of the University of Richmond School of Law. It's definitely worth your while.

Moot. E.I Dupont de Nemours & Co. ("Dupont") sought to enjoin a company from acquiring another company. Dupont argued that the transaction would violate a contract it had with the acquiring company. The District Court denied Dupont's motion for a preliminary injunction, and Dupont appealed.

After the notice of appeal had been filed, the transaction at issue broke down. Dupont moved to dismiss its appeal and to remand the Court with instructions to dismiss the action. The Court agreed to do so, holding that while a voluntary cessation of allegedly illegal contact does not render an appeal moot where such cessation is a stategic litigation move, this is not the case where the party alleging the illegal contact asserts that the claim is moot and where the cessation of the alleged wrongdoer was not done to avoid a possible adverse decision by the Court. While the possibility that the acquiring company might at a later date seek again to acquire the other company, it was not attempting to do so currently. Hence, the case was moot.

The decision in E.I. Dupont de Nemours & Co. v. Invista B.V. can be found here.

Appeal Dismissed. A criminal defendant in United States v. Moreno-Rivera filed an untimely notice of appeal. The government moved to dismiss. The defendant, under prior Second Circuit, claimed that the Court should remand the case to the District Court with instructions to vacate the judgment and enter a new judgment from which an appeal could be taken based on the inadequate assistance of appellate counsel. The Government argued that the precedent only applied in cases where it was undisputed that the defendant had instructed his counsel to file a notice of appeal and the counsel did not do so in a timely manner. The Second Circuit agreed, finding that the record on the issue did not clearly show that the defendant had asked his attorney to file a notice of appeal and dismissed the appeal.

The decision in this case can be found here.

Ownership of Kidney. The Second Circuit had referred certain questions relating to the ownership of a kidney to the New York Court of Appeals. The plaintiff had sued the New York Donor Network, Inc., claiming that it had violated his rights in a kidney by delivering the kidney to someone else. The Court held that the plaintiff did not have a private right of action against the Donor Network because the kidneys at issue were medically incompatible with him.

The Court of Appeals' decision in Colavito v. New Your Organ Donor Network, Inc. can be found here. My prior post on this case can be found here. The case will now return to the Second Circuit for resolution.

Update. The Government has decided to appeal from the District Court's decision in American Council of the Blind v. Paulson, the case which requires the Government to make its paper money so that the blind can tell the difference between a one and a twenty.

My prior post on this case can be found here. Of course, it's only two posts down, so you might not want to bother clicking and just scroll down.

Law Student Blog. As my regular readers (and I know there are not many of you) know, I have adopted a law student blog as my own special blog. This is my second such blog, the first being the gone-but-not-forgotten Letters of Marque by Heidi Bond (now clerking for Judge Kozinsky of the Ninth Circuit). My new law student blog is by a nameless student from a nameless school. I had previously mentioned the blog, but it has changed its name. It's now called Butterflyfish. I gather that the anonymous blogger is a fish enthusiast. Check it out. I'm sure you'll like it.

Discriminatory. OK, this is not about the Second Circuit, but I couldn't let the recent memorandum opinion of the District Court of the District of Columbia go by without comment. In American Council of the Blind v. Paulson, the Court held that U.S. paper money is illegal and that the government must come up with a new permutaition of our bills to make them distinguishable to blind and visually-impaired people. It's true. The decision can be found here

I don't usually get comments on this blog (though the comment feature is active), but I figure someone has to have something to say about this. Will the government comply or will it appeal the decision? And is the decision right?

Princeton lawsuit. This is not about the Second Circuit, but since I got a nice e-mail about a blog about the lawsuit against Princeton for the misuse of a huge donation, I thought I'd link to it, so you could check it out.

When is filing? The Class Action Fairness of 2005 provides that a court of appeal must "complete all action on such appeal [from a district court's grant or denial of a motion to remand], including rendering judgment, not later than 60 days after the date on which such appeal was filed, unless an extension is granted under [28 U.S.C. 1453]." If judgment is not rendered within that period, then the appeal is deemed denied. In DiTolla v. Doral Dental IPA of New York, LLC, the defendant filed a petition for permission to appeal on May 119, 2006, but the petition itself was not granted unitl 66 days later on July 24, 2006. Defendant's brief was filed on August 17, 2006 and on September 21, 2006, the parties stipulated to a 60-day extension. But if the appeal was filed at the time of the appeal, then the 60-day period ended long before the stipulation was executed and the case should have been deemed denied.

The Court raised this issue sua sponte. It decided that the 60-day period begins on the day that the Court grants the petition to appeal is filed. This decision is consistent with the holdings of the Seventh Ninth and Eleventh Circuits on the same issue.

On the issue raised by the plaintiff on appeal, the Court ruled that the party seeking to remove a case to federal court has the burden of showing that the case meets the jurisdictional amount. This case, in which an accounting was sought, the defendant was unable to make that showing. The Court affirmed the decision of the District Court remanding the case to the state court.

The decision can be found here.

Collateral Estoppel. In a state court action, a default judgment was entered against two individuals, the Ottimos, and the companies they controlled. At the close of the inquest, the state court found that the individuals had committed fraud. Five years after the entry of judgment, the Ottimos filed for bankruptcy. The plaintiff in the state court action brought an adversary proceeding, contending that his judgment against the Ottimos was non-dischargeable because it was based on fraud. He moved for summary judgment, claiming that the issue could not be relitigated because of collateral estoppel.

The Bankrupty Court denied the motion, holding that collateral estoppel could not be applied in instances where the prior judgment was obtained by default. The plaintiff appealed to the District Court.

The District Court reversed, holding that the issue of fraud need not have been actually litigated. The Ottimos nned only to have been afforded the opportunity to litigate the issue. They had been afforded the opportunity. The Ottimos appealed.

The Second Circuit noted that under a bankruptcy court is bound by a liability determination in a default judgment unless an exception (judgmetn procured by collusion or fraud, lack of jurisdiction) exists. No such exception was applicable in this case.

The Court then determined that the issue in the two cases, i.e., the fraud, was identical, and that fraud had been proven to a higher burden in the state court than would be required to show nondischareability in a bankruptcy court. It held that collateral estoppel was applicable and affirmed the decision of the District Court.

The decision in Evan v. Ottimo can be found here.

It's back. Earlier in the year, I blogged on the case United States v. Parker here. Well, the case is back to the Second Circuit. The case had been remanded for a possible resentencing. The District Court, in light of the prior litigation, appointed a new counsel to conduct the resentencing proceedings. Parker, through his prior counsel, Mahoney, moved for reconsideration of that order. Ultimately, the Court decided not to resentence Parker and denied his motion for reconsideration. Parker appealed.

The Second Circuit held that the District Court had not abused its discretion in substituting a new attorney to represent Mahoney. Also Mahoney was not a member of the Second Circuit's CJA Panel, while the new attorney was. And the new attorney had represented Parker on the remand. Accordingly, the Court affirmed the decision of the District Court, appointing the new counsel. The new counsel would continue to represent Parker on the appeal.

The decision can be found here.

Tooting my own horn. Just wanted to alert appellate practioners and others interested in what goes on in the appellate courts to a new project of mine. I have long been a member of the ABA and an active member of its Section of Litigation's Appellate Practice Committee. Well, to spice up the Committee's webiste, I have started a feature called "The Appellate Buzz" providing news about what's going on in appellate courts throughout the country. Obviously, I can't report on everything that goes on in every appellate court in the country, but I try to be diverse and interesting, and it is updated twice a week (not as good as a blog, but what can I do). Feel free to check in out.

Appealable? Here's an odd case raising an issue of appealablility.

An employee sued an insurer, who had refused to pay her disability benefits, and her employer.
The District Court dismissed the claims against the employer, holding that they were preempted by ERISA, and remanded the case against the insurer, holding that it had applied the wrong standard in categorizing the requirement of the employee's occupation. At the end of its order, the District court stated that the Clerk of the Court was directed to close the case.

The employee appealed the dismissal of her claims against her employer, and her employer moved to dismiss the appeal because the order was not final in lght of the remand.

The Second Circuit denied the motion, holding that there was no danger of piecemeal appeals in allowing the appeal to go forward.

The case is confusing in that the District Court did not make the requisite determination that there is no just reason for delay nor was there an express direction by the District Court for the entry of judgment (although there was a direction to close the case) as required by Rule 54(b) of the Federal Rules of Civil Procedure in order to make the order appealable. It appears that the Second Circuit, without saying so, made the requisite determination itself and deemed the direction to close the case as a direction to enter judgment. But is that valid? I am unaware of any Circuit Court that has evaded the requirements of Rule 54(b) in this manner (though I intend to look into the matter). If anyone else knows of any case law relating to this issue, please let me know.

The decision in Nelson v. Unum Life Insurance Co. can be found here.

Bankruptcy Trumps Divorce. The Second Circuit held when marital assets have been awarded to the wife in a state court matrimonial proceeding, those assets do become part of a husband's bankruptcy estate if a Chapter 7 petition is filed after the state court's decision had been rendered, but before the state court judgment is entered. The District Court had held that entry of the judgment was merely ministerial and that the assets could be taken by the wife, but the Second Circuit, in a per curiam decision, vacated and remanded the decision.

The decision in Musso v. Ostashko can be found here.

Election Law Provisions Upheld. The Second Circuit upheld certain provisions of the New York Election Law in Person v. New York State Board of Elections. Person had sought a preliminary injunction, seeking to enjoin the enforcement of certain provisions of the Election Law. The District Court denied the injunction, and Person appealed.

First, Person challenged a provision of the Election Law that limited payment of any compensation to individuals hired to circulate electoral petitions. The Second Circuit noted that the provision at issue has long been interpreted in New York "as not imposing an impermissible burden on vote gathering because if does 'not prohibit[] the procurement of signatures wither by volunteers or paid workers.'" Individuals can still be paid on a daily or weekly basis, but their payment cannot be contingent on the number of signatures they get.

Second, Person argued that a prohibition on per-signature payment violated Supreme Court precedent. The Second Circuit joined the Eighth and Ninth Circuit in holidng "that a state law prohibiting the payment of electoral petition signature gatherers on a per-signature basis does not per se violate the First or Fourteenth Amendments."

Finally, Person challenged the assignment of official status only to parties whose gubnatorial candidates had, in the last gubnatorial election, received 50,000 votes violates his First and Fourteenth Amendment rights because it conditions official status on a party's candidate for governor rather than some other candidate that the party might have preferred to nominate and support. The Second Circuit noted that there was no constitutional right to appear on a ballot and noted that courts have upheld an array of restrictions on ballot access. In consonance with the precedents, the Court held that the provision did not violate Person's rights.

Although the decision says nothing about it, it appears that Mr. Person was a candidate for the Green Party.

The decision can be found here.

Not testimonial. The Second Circuit has held that autopsy reports are not testimonail under Crawford v. Washington, and the failure to have the opportunity to cross-examine the author of such reports before their admission into evnidence does not violate the Sixth Amendment.

The decision in United States v. Feliz can be found here.

Dead. A police officer who was hit by a SUV operated by Second Circuit Judge John M. Walker, Jr. died. The accident is still under investigation, but the police had seen no need to have the judge tested for drug or alcohol use.

Not final. In Honeywell Int'l, Inc. v. Purculator Products Co., the court entered an order, granting summary judgment on the issue of liablity under the Employee Retirement Income Security Act. The case then settled. The defendant made an application to compel the plaintiff to pay attorneys' fees and costs. The plaintiff sought to appeal from the order granting summary judgment on liability, which was the predicate for the request for fees. The Second Circuit dismissed the appeal. The order was moot in that the case was settled and could not be appealed, and, to the extent that it was the predicate for the application for fees, an appeal could not be taken until the Court had decided that fees would be granted and the amount of such fees. Until that determination was made, the decision was not final and not appealable.

The decision can be found here.

One occurrence or Two? Well, it's mixed news for Larry Silverstein. The Second Circuit has held that the terrorist attack on the World Trade Center on 9/11 was one occurrence for certain insurers bound under the so-called Will-Prop form, but upheld the jury verdict finding that, for purposes of other insurers not bound by that form, the attack constituted two occurrences. This may warrant further discussion after I've had a chance to read it in full. It's a long one, over 70 pages.

The decision in SR International Business Insurance Co. v. World Trade Center Properties can be found here.

Substantial Compliance. The Second Circuit has held that substantial compliance with IDEA is not sufficient to prevent a preliminary injunction being issued against a school district. While the Secretary of Education is permitted to withhold funds from a school district that has not substantially complied with IDEA, that requirement does not provide a district to avoid injunctive relief if it substantially complies with the statute. It is required to provide a free, appropriate public education.

The Second Circuit, in DD v. New York City Department of Education, however, held that the plaintiffs were not entitled to relief immediately, but "as soon as possible."The case was remanded to the District Court for a decision under the correct standards. The Court suggested that the preliminary injunction motion be combined with the merits and that the entire controversy be adjuciated.

The decision can be found here.